The first appellate court has jurisdiction to upset the trial court's findings if they are perverse and contrary to settled law.

JUDGMENT

1. Appellant-plaintiff has preferred this second appeal under Section 100 of CPC, feeling aggrieved by the judgment and decree dated 12.04.2007 passed in civil regular appeal No.58/2005 by Additional District Judge, No.2, Sikar whereby and whereunder the decree for permanent injunction passed by the Additional Civil Judge (Jr.D.) No.2, Sikar in civil suit No.168/2003 (174/98) vide judgment and decree dated 18.10.2004 in respect of ’gallery’ in question at first floor has been quashed and set aside and while dismissing the counter claim of respondent-defendants, the civil suit for permanent injunction filed by the appellant-plaintiff has also been dismissed.

2. Heard learned counsel for both parties, perused the impugned judgments and record.

3. It is not in dispute that both parties are neighbours and the gallery situated at ground floor is of common use by both parties as also by other persons. The dispute between the parties is only in respect of gallery situated at first floor, which is above to the gallery situated at ground floor. Plaintiff claimed his absolute ownership and use for the gallery at first floor, whereas defendants alleged that the gallery at first floor is also of common use by both parties.

4. The trial court, on the basis of evidence of plaintiff that he used to use the gallery, shifting the onus to prove the ownership of gallery upon defendants.

5. The first appellate court found such shifting of onus to prove the ownership upon defendants as illegal. The first appellate court has clearly observed in para 21 of the impugned judgment that the plaintiff has come out with a case claiming his absolute ownership and possession over the gallery in question situated at first floor, it is the burden of plaintiff to prove his averments of plaint. Since the plaintiff has miserably failed to produce any document or either cogent evidence to show his ownership and exclusive possession, therefore the first appellate court has reversed the findings and the decree for permanent injunction passed by the trial court. First appellate court has also noted that defendant (DW-1) and his witness (DW-2) have contended that the gallery in question at first floor is of common use. Therefore, it is not that case where on the gallery in question at first floor, defendants are claiming their exclusive right. Rather, as per the findings of the first appellate court, the gallery in question situated at first floor has been treated as for common use by both parties just like as the gallery situated at first floor just beneath to the gallery in question is of common use between the parties.

Findings on reversal by the first appellate court are based on due application of mind and within parameters of law as the trial court committed illegality in shifting the onus of ownership in respect of gallery in question from the plaintiff to defendants whereas no substantive evidence or any documentary evidence was produced by the plaintiff to prove his ownership and exclusive use.

6. Learned counsel for appellant-plaintiff fairly admits that the Gowadi in question is situated at Ward No.5, Sikar in respect of there is no title document in either of the parties. This Court finds that the first appellate court has not committed any illegality or jurisdictional error. The findings of first appellate court are just and proper. It is otherwise seems to be unusual and improper that when is undisputed and admitted case between the parties that gallery at ground floor in the Gowadi in question is for common use between the parties then whey the gallery in question which is just situated on the first floor above to the gallery at ground floor should not be treated as for common use by both parties. Thus, no substantial question of law is involved in the present second appeal

7. In Santosh Hazari Vs. Purushottamn Tiwari [(2001) 3 SCC 179] the Apex Court held as under:-

"A point of law which admits of no two opinions may be a proposition of law but cannot